Kawabe v. Continental Life Ins. Co.

• Decision Date: 14 December 1917
• Docket Number: 14242.
• Citation: 99 Wash. 214,169 P. 329
• Parties: KAWABE v. CONTINENTAL LIFE INS. CO.
• Court: Washington Supreme Court

169 P. 329

99 Wash. 214

KAWABE v. CONTINENTAL LIFE INS. CO.

No. 14242.

Supreme Court of Washington

December 14, 1917

Department 1. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by Kameo Kawabe against the Continental Life Insurance Company. Judgment for plaintiff, and defendant appealed. Application for leave to file a petition in the superior court to vacate the judgment rendered against it and grant a new trial on the ground of newly discovered evidence. Leave granted.

Karr &amp Gregory, of Seattle, for appellant.

J. B Keener and Ray & Dennis, both of Tacoma, for respondent.

PARKER, J.

The Continental Life Insurance Company has applied to this court for leave to file a petition in the superior court for Pierce county to vacate the judgment rendered against it by that court in this action, and grant a new trial therein upon the ground of newly discovered evidence, from which judgment it has appealed to this court.

On July 16, 1917, we rendered a decision (166 P. 617) denying the insurance company's application to this court to vacate the judgment and grant a new trial, holding that it was not within the province of this court to grant new trials upon a showing made of facts outside the record brought to us upon appeal from the trial court. It was also therein pointed out that the trial court could not entertain such an application while the case was pending in this court upon appeal, this being the rule announced in our previous decisions: State ex rel. Mullen v. Superior Court, 15 Wash. 376, 46 P 402; Canada Settlers et al. v. Murray, 20 Wash. 656, 56 P. 368; AEtna Ins. Co. v. Thompson, 34 Wash. 610, 76 P. 105 Inland Nursery, etc., v. Rice, 56 Wash. 21, 104 P. 1117; Gust v. Gust, 71 Wash. 75, 127 P. 566.

It seems necessary to notice the present status of this case in this court, with a view of determining whether or not there has been such a final disposition of the cause here as to warrant this court in permitting the trial court to now entertain the insurance company's petition for new trial. In March, 1917, there was rendered against the defendant insurance company, upon the verdict of a jury, in the superior court for Pierce county, a judgment for the sum of $2,631 in favor of the plaintiff Kawabe. The defendant appealed from that judgment to this court, and on the same day caused to be duly executed with a sufficient surety and filed in this cause an appeal and supersedeas bond in the sum of $6,000. Thereafter, on August 28, 1917, appellant by its attorneys filed in this court its motion as follows:

'Comes now Continental Life Insurance Company, appellant herein, and moves the court that its appeal from the judgment of the superior court of the state of Washington in and for Pierce county be dismissed at appellant's costs. This motion is made to enable appellant to petition this court for permission to file a motion in the said superior court of the state of Washington for Pierce county, to vacate a judgment entered herein, and to grant appellant a new trial because of newly discovered evidence.'

Thereafter on September, 7, 1917, respondent by his attorneys filed his motion in this court 'for an order dismissing the appeal and affirming the judgment.' This was done in respondent's behalf evidently with a view to having the judgment affirmed to the end that respondent might have judgment against the surety upon the appeal and supersedeas bond and also for his costs, as well as a dismissal of the appeal. These motions of appellant and respondent coming on for hearing in this court on September 28, 1917, we then concluded they should both be granted; but the order then entered, by inadvertence, was a simple order of dismissal, no affirmance of the judgment of the superior court nor any judgment against the surety upon the appeal and supersedeas bond being embodied in the order of...